Senate Passes CRA Resolution Disapproving FCC’s RIF Order

The Senate today passed on a 52-47 vote a Congressional Review Act resolution disapproving of the FCC’s December 2017 restoring Internet freedom (RIF) action, teeing up potential action in the House, where CRA resolution sponsor and communications and technology ranking member Mike Doyle (D., Pa.) announced a discharge petition would be “open for signing tomorrow morning.”

In the House, 218 signatures are required on a discharge petition to force a floor vote.

With Sen. John McCain (R., Ariz.) absent from the chamber due to health issues, Democratic and independent supporters of the resolution needed only one Republican vote to secure a majority, and Sen. Susan Collins (R., Maine) had announced her support in January (TR Daily, Jan. 10). Two more Republican senators, John Kennedy (R., La.) and Lisa Murkowski (R., Alaska), who had not committed either way in the weeks leading up to the vote, added their support to the resolution today.

Republican opponents of the resolution, including Senate communications, technology, innovation, and the Internet subcommittee Chairman Roger Wicker (R., Miss.), said repeatedly during floor debate and in written statements that they support a free and open Internet and that bipartisan legislation to codify net neutrality protections is a more appropriate path to dealing with the issue. Senate Commerce, Science, and Transportation Committee Chairman John Thune (R., S.D.) emphasized that he has been looking for Democrats to negotiate with him on draft net neutrality legislation since 2015 and today he unsuccessfully sought unanimous consent to bring the draft to the floor for debate and amendment.

Democratic supporters of the resolution said that this argument was just a delaying tactic to allow the FCC’s December RIF declaratory ruling, report, and order to take effect, which the FCC announced last week will happen on June 11 (TR Daily, May 10).

Republicans, including Sen. Thune, leveled the same charges of stalling and delaying against supporters of the CRA resolution, which they said has no chance of winning House approval and would face a veto from President Trump even if it did.

In addition to substantive criticisms of the FCC’s RIF action, Democrats criticized the process by which it was adopted, saying FCC Chairman Ajit Pai launched the proceeding with a predetermined outcome and that the agency ignored evidence of comments submitted with false identities. Chairman Pai has said that because the agency weighs the arguments without regard to who or how many commenters presented the arguments, the issue of “fake comments” is irrelevant.

During today’s floor debate, Sen. Elizabeth Warren (D., Mass.) said, “Who can say we didn’t see this [RIF action] coming? When Donald Trump won the White House, then-Commissioner Pai said that net neutrality’s days were numbered.”

Sen. Brian Schatz (D., Hawaii) said that polling shows “one-sidedly” overwhelming support for net neutrality and that the only constituency opposing the CRA resolution is providers of Internet access service.

Sen. Jim Lankford (R., Okla.) suggested that edge providers are hypocritically asking that different rules regarding filtering and charging for content be applied to Internet service providers but not to edge providers. “Two giant sets of companies are competing and asking the government to jump in the middle,” he said, adding, “I don’t see why the government should get into the business of free speech and telling people what they can and can’t say.”

The RIF action reversed a 2015 decision by the then-Democratic-controlled FCC that classified broadband Internet access and mobile broadband service as common carrier services and adopted bright-line rules against blocking, throttling, and paid prioritization, as well as a general conduct standard. The RIF action also imposed specific transparency requirements on ISPs, directing them to disclose if they engage in blocking, throttling, paid prioritization, or prioritization of affiliate content or services. And it specified that broadband Internet services are interstate services and preempts state actions that conflict with the federal regime for ISPs (TR Daily, Dec. 14, 2017).

In a statement today, House Energy and Commerce Committee ranking minority member Frank Pallone Jr. (D., N.J.) said, “I congratulate the Senate on taking a giant step to restore real net neutrality back to the American people. Beltway insiders and special interests said that we would never get this far, but ultimately the American people understand how important net neutrality is. Now the public will hold those of us in the House accountable for whether we support net neutrality or not. That’s why I encourage my colleagues in the House to listen to the American people, force a vote on Ranking Member Doyle’s resolution, and send it to the President’s desk.”

During a bicameral Democratic press conference after the Senate vote, Rep. Doyle said, “Everyone who believes in a free and open Internet needs to urge their member of Congress to sign the discharge petition and vote for the CRA resolution.”

In response to a question about the chances for House passage, Senate Minority Leader Chuck Schumer (D., N.Y.) said, “Our weapon is the people in the streets.”

House Minority Leader Nancy Pelosi (D., Calif.) said that the 23-year-old grandson of her brother, former Baltimore Mayor Thomas D’Alesandro III (D.), recently told her that “the only issue he and his friends care about is net neutrality.”

During the floor debate, Sen. Jeff Merkley (D., Wash.) said that to win House approval of the CRA resolution, “we need the American people to weigh in.”

Sen. Maria Cantwell (D., Wash.) said during the press conference that “there are also people in the administration, [such as Commerce Department Office of Policy and Strategic Planning Director] Earl Comstock, who is saying he would like to see the administration get behind this” resolution.

In a statement, Rep. Jerrold Nadler (D., N.Y.), ranking minority member of the House Judiciary Committee, said, “Today’s bipartisan vote in the Senate is a major step toward restoring strong net neutrality protections. Internet openness is critical to promoting innovation, competition, and free expression online. But work remains to be done, and the fight continues in the House of Representatives. I urge my colleagues to listen to the American people’s overwhelming support for net neutrality and to hold a vote on this important measure in the People’s House.”

In a joint statement reacting to the Senate action, House Commerce Committee Chairman Greg Walden (R., Ore.) and communications subcommittee Chairman Marsha Blackburn (R., Tenn.) said, “The future of the internet should not be left to unelected government bureaucrats. It should be driven by what has always worked — innovation, American entrepreneurship, and a light-touch regulatory framework. A vote for the CRA was a vote to subject the internet to 1930s-era regulation, when one copper wire was considered advanced technology. What we saw today demonstrates that Senate Democrats are only interested in scoring political points, not coming to the table for good faith negotiations. Consumers deserve certainty, and that’s why we renew our call for a bipartisan, permanent, legislative solution to solve this important issue once and for all.”

House Judiciary Committee Chairman Bob Goodlatte (R., Va.) said, “The Senate’s vote on the so-called net neutrality CRA represents a major setback for consumers and innovators. As we have witnessed over the last several years, the internet progresses most when it remains free from overregulation. I am disappointed that my colleagues in the Senate have advanced this measure that will hurt the internet economy in the long run. If we seek to maintain a stable internet marketplace, create jobs, and increase access to the internet for all Americans, it is time to return to the light-touch regulation that empowered the internet to grow to its current position of prominence. I have opposed the heavy-handed internet regulations from the previous Administration, and I will continue to oppose the rollback of the Restoring Internet Freedom Order in the future.”

Chairman Pai expressed dissatisfaction with the Senate’s action. “It’s disappointing that Senate Democrats forced this resolution through by a narrow margin. But ultimately, I'm confident that their effort to reinstate heavy-handed government regulation of the Internet will fail,” he said in a statement.

“The Internet was free and open before 2015, when the prior FCC buckled to political pressure from the White House and imposed utility-style regulation on the Internet. And it will continue to be free and open once the Restoring Internet Freedom Order takes effect on June 11,” Chairman Pai continued.

“Moreover, contrary to the scare tactics employed by Senate Democrats, which earned three Pinocchios from the Washington Post’s fact-checker [for claims that the RIF action would lead to slower Internet access speeds], our light-touch approach will deliver better, faster, and cheaper Internet access and more broadband competition to the American people — something that millions of consumers desperately want and something that should be a top priority. The prior Administration’s regulatory overreach took us in the opposite direction, reducing investment in broadband networks and particularly harming small Internet service providers in rural and lower-income areas. Our approach will help promote digital opportunity — that is, making high-speed Internet access available to every single American so that they can be participants in, rather than spectators of, our digital economy,” Chairman Pai concluded.

“At the FCC, we are focused on policies that will deliver those results. We are cutting billions of dollars’ worth of red tape that has been slowing broadband deployment. We are freeing up more spectrum for next-gen wireless broadband than any other country in the world. And we are promoting the deployment of broadband infrastructure from big cities to small towns,” he continued.

“These policies — not multi-Pinocchio claims about the end of the Internet that are being promoted in service of partisan politics — are the path to delivering more broadband for more Americans. The FCC will continue the serious work we are doing to put these policies in place,” Commissioner Carr added.

Democratic FCC Commissioner Jessica Rosenworcel said, “Today the United States Senate took a big step to fix the serious mess the FCC made when it rolled back net neutrality late last year. The FCC’s net neutrality repeal gave broadband providers extraordinary new powers to block websites, throttle services and play favorites when it comes to online content. This put the FCC on the wrong side of history, the wrong side of the law, and the wrong side of the American people. Today’s vote is a sign that the fight for internet freedom is far from over. I’ll keep raising a ruckus to support net neutrality and I hope others will too.”

NCTA, American Cable Association President and Chief Executive Officer Matthew Polka, Telecommunications Industry Association Senior VP–government affair Cinnamon Rogers also issued separate statements calling for bipartisan legislation that applies to all members of the Internet economy, in lieu of the CRA resolution.

ITTA President Genny Morelli expressed disappointment with the Senate’s action, adding, “ITTA looks forward to working with Congressional leaders and industry stakeholders to preserve an open Internet while encouraging additional investment in broadband networks for future generations.”

In separate statements, TechFreedom and the Free State Foundation argued that because the RIF’s reclassification of Internet broadband access as an information service came in a declaratory ruling, rather than a rulemaking action, the CRA resolution will not apply to it, leaving net neutrality rules based on common carrier regulatory authority in limbo.

Other parties issuing statements critical of the Senate’s action included the Internet Innovation Alliance, Mobile Future, Broadband for America, the Information Technology and Innovation Foundation, the Competitive Enterprise Institution, the Institute for Policy Innovation, and Tech Knowledge.

But Internet Association President and CEO Michael Beckerman said, “The internet industry commends the Senate for its work to reinstate net neutrality rules through the CRA and urges the House of Representatives to work to protect people’s access to a free and open internet. Guaranteed access to the entire internet is not a partisan issue. An overwhelming majority of Americans support net neutrality protections that ban blocking, throttling, and paid prioritization. It is time for Congress to pass strong, enforceable net neutrality protections — through the CRA or bipartisan legislation — that provide consumers the protections they deserve.”

Computer & Communications Industry Association President and CEO Ed Black said, “There is too much at stake for the economy and businesses that rely on the internet to let the FCC abdicate its responsibility to defend open internet access. Without some intervention by Congress and the courts, a few incumbent ISPs can alter the way the internet works in order to charge extra from internet users.

“With such consensus among Internet users, businesses, public interest groups on the need for an open internet, it is appalling the agency that was supposed to protect consumers decided not to do so. We all owe a debt of gratitude to Senators today for recognizing what a serious misstep the FCC has taken — and doing all they can to stop it. We urge the House to follow the Senate’s action,” Mr. Black added.

Incompas CEO Chip Pickering called the Senate’s action “a win for young Americans who want to start a business and consumers who have cut the cord and love the streaming revolution.”

Other parties issuing statements in support of the Senate action on the CRA resolution included Consumers Union, the American Civil Liberties Union, Public Knowledge, Free Press, the National Hispanic Media Coalition, Public Citizen, the New America Foundation’s Open Technology Institute, and the Center for Democracy & Technology. —Lynn Stanton, [email protected]

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